Back in June, I had a really stimulating discussion on the comment thread of a post by Mark Hibbs over at Arms Control Wonk. This is one of many great conversations I’ve had on the threads at ACW. I’ve long been grateful particularly to Mark Hibbs, who is one of the core bloggers over there, and who has been singularly important for many years through his contributions as a journalist and analyst on issues of arms control. His posts are always enlightening, and his liberal comments policy allows for full and frank discussion of the issues by readers. That’s not a policy shared by all of the bloggers over at ACW, but it’s a policy I’d like to emulate here at Arms Control Law.
You can see the whole discussion and the original post by Mark here.
However, for purposes of this post, I have edited the conversation in order to focus only on the exchange I had with George Herbert on the topic of the role of international law in the context of the Iranian nuclear crisis specifically, and more generally in the entire issue area of nonproliferation. I thought it was a frank, engaging, enlightening and (overall) collegial discussion, and I thank George again for taking the time to discuss the issue with me. I thought I would copy the exchange here because it really does delve into some fundamental and perennial questions about the proper role and contribution, and the limits thereof, of international law in the context of nonproliferation related disputes – especially ones as high profile and dangerous as the dispute over Iran’s nuclear program.
Just as an editorial note, while I have removed a few of the comments by others in the thread, I have preserved every word of George’s and my comments. You will in addition see one or two other commenters quoted/mentioned, which I couldn’t excise without making the conversation seem confusing.
So without further ado, here it is. I hope you find it interesting:
I just saw this story about the ongoing negotiations between the U.S. and South Korea on a replacement 123 agreement. South Korea very much wants to be able to have domestic ENR capability and the U.S. is not willing to sign a deal with them unless they commit not to have it.
Theres just a tone to stories like this of the little developing state begging the big powerful developed supplier state to please, sir, allow them to have this technology that they really want, and think would be really beneficial for them. Like little Oliver asking for more gruel from the headmaster. The paternalism is just palpable, and really disturbing to me. The child presents its well-thought-through reasons why they should have the new stuff, and how they’ll be extra careful with it and make sure it doesnt hurt anyone. And then the dad just shoots them down, saying they dont really need it; its just too dangerous for them to have; they can’t be trusted to be responsible with it yet; theyre fine without it and should just keep relying on dad for the stuff.
I noted in my post below on the current gold standard interagency review about the debate going on in the comments to Mark Hibbs’ post over at Arms Control Wonk. David Fite in those comments tries to persuade us that when countries like Taiwan and South Korea agree to no-ENR commitments in their 123 agreements witht the U.S., its completely voluntary and an exercise of their sovereign right to choose that everyone should respect. And even more, that we should view such decisions as state actions producing a new global norm.
Well South Korea doesnt look very sovereign here to me.
Mark Hibbs has a very good post at the moment over at Arms Control Wonk about Taiwan’s acceptance of what U.S. officials call the “gold standard” provision, committing not to engage in domestic enrichment or reprocessing activities, as a part of the renewal of their nuclear technology sharing treaty with the U.S. (such treaties with the U.S. are typically referred to as “Section 123 agreements” because of the section of the 1954 Atomic Energy Act that specifies the conditions necessary for the U.S. to enter into such agreements). See the post here. I’ll let Mark’s analysis speak for itself, though noting that I completely agree with it and I think it’s an important insight.
What I wanted to mention here is that in the comments to the post (where there’s a good discussion going on that I’d recommend checking out BTW), David Fite, who is a member of the Democratic professional staff for the House International Relations Committee, notes that the U.S. administration’s policy with regard to negotiating 123 agreements, specifically on the subject of the enrichment and reprocessing (ENR) “gold standard,” is currently under interagency review, for the third time. This was news to me and I’m glad David mentioned it. Its surprising because the policy under review was only about six months old, having been laid out in a January 10, 2012 letter by Deputy Secretary of Energy Daniel Poneman and Undersecretary of State for Arms Control and International Security Ellen Tauscher, which was sent to members of Congress. See a summary of the letter and the policy here.
Basically, the letter said that U.S. policy going forward would be to evaluate each new 123 agreement negotiation on a “case by case” basis, and not to have a predetermined, inflexible policy on the sorts of provisions that would have to be included in the final agreement. There had been considerable pressure on the administration from Congress – and in fact there had been efforts to pass legislation legally requiring the administration – to adopt a policy of requiring all new 123 agreements to contain a gold standard provision in which the nuclear sharing partner state would legally commit not to engage in domestic ENR activities. The Tauscher-Poneman letter manifested the administration’s resistance to that pressure, and its adoption of a more flexible policy that the administration felt would better serve U.S. interests. As the letter explained:
Nuclear trade carries with it a critical nonproliferation advantage in the form of consent rights, along with other opportunities to influence the nuclear policies of our partners. To obtain this advantage, we need to negotiate agreements that our partners can accept and that open doors to U.S. industry. We are concerned that other options could have the opposite effect, by reducing the number of future U.S. partners, minimizing our nonproliferation influence, and raising questions about our reliability as a supplier.
Our competitors are not standing still. France and Russia in particular are very aggressive in pursuing nuclear business worldwide, and offer favorable terms. Neither imposes ENR conditions in their agreements. Each billion dollars of American nuclear exports supports 10,000 jobs, and provides the U.S. with access and influence over the direction of nuclear programs, ensuring they meet the highest standards for nonproliferation, security, and safety.
This very sensible, practical realization about the limits of U.S. influence, the competitive realities of the international nuclear technology market, and the harm that an inflexible policy would do to U.S. nuclear technology vendors, was criticized by some at the time – including by John Bolton – as placing the profitability of the U.S. nuclear industry over nonproliferation goals. Maybe enough Bush-era people, high enough up in the relevant USG agencies, have banded together to bring the policy back under review. I don’t know.
But in my opinion, the balance of both practical and principled considerations weighs heavily on the side of maintaining the “case by case,” flexible approach to 123 agreement negotiations announced in the Tauscher-Poneman letter, and to a policy that places little to no emphasis on pressuring developing states to make legally binding commitments to forego their legal rights to full indigenous nuclear fuel cycle capability.
I’ll leave the principled NPT Article IV arguments for other posts. I don’t think you really even need to get into them to see that the Tauscher-Poneman approach is the most prudent position for U.S. policy. I think they are absolutely right to cite to the competitive realities of the international nuclear technology market, and make the point that if the U.S. requires a no-ENR commitment, when none of the other home states of major nuclear technology vendors do (e.g. France, Russia, South Korea, Japan, China), then buyer states will likely just go elsewhere for their nuclear technology. And how would this help the nonproliferation cause? That’s of course if you even think that requiring developing states to commit not to have ENR technologies does somehow contribute to nonproliferation goals. The reality is that most developing states don’t want to have indigenous enrichment and reprocessing capabilities. These are extremely expensive and technologically complex programs, and just don’t make sense for most developing states, when they can source nuclear fuel much more easily and cheaply from the private market.
But what developing states do care about, and this has been reiterated in NAM statements time after time, is not being pressured by supplier states to give up what they correctly view as their legal rights to have ENR capabilities if they choose to have them. That’s why states like Jordan have outright refused to enter into 123 agreements with the U.S. containing no-ENR commitment provisions. It’s a matter of principle and sovereign independence that matters to many developing states. Saudi Arabia and Vietnam also, for a variety of reasons, appear highly unlikely to be willing to make such commitments in their 123 agreement negotiations with the U.S.
So if U.S. policy on 123 agreement negotiations changes through the current interagency review process, to a requirement of such a provision, who will lose out? Not the buyer states. They’ll be happy to sign deals with Rosatom or Areva or KEPCO or any number of other nuclear vendors not based in the U.S. No, the only losers will be General Electric and Westinghouse who, in the absence of a 123 agreement, won’t be able to sell their nuclear technology to these countries.
I wanted to call readers’ attention to what I think is a very important and insightful article by Hossein Mousavian in the current issue of Arms Control Today. Mousavian is currently a Research Scholar at Princeton’s Woodrow Wilson School, but from 1997 to 2005 he was the head of the Foreign Relations Committee of Iran’s National Security Council, and from 2003-2005 he was spokesman for Iran in its nuclear negotiations with the EU. Basically, he was intimately involved on the inside of Iran’s nuclear diplomacy with the West up through 2005.
In this ACT article, Mousavian gives a narrative of the history of Iran-West nuclear diplomacy from 2002 up to the present, from the Iranian perspective. This is a perspective that we in the West just dont get to hear very often, and here it’s being recounted by someone who was an insider on the process for many years on the Iranian side.
You can find the full text of the article here: http://www.armscontrol.org/2012_07-08/The_Iranian_Nuclear_Dispute_Origins_and_Current_Options
I can’t recommend this article highly enough. I think Mousavian’s thesis, that the history of Iran’s nuclear program – going back more than 50 years – “suggests that the West is inadvertently pushing Iran toward nuclear weapons,” is laid out quite clearly and persuasively in the article. I was personally struck in reading the narrative Mousavian lays out, at how essentially reasonable Iran’s diplomatic positions since 2003 appear to have been. I knew alot of this information already of course, but Mousavian puts it in a narrative that allows you to see how, over and over, Iran has been willing to negotiate and compromise on so many of the points of concern the West has had. And I was just as struck by how intransigent and unreasonable the U.S. led diplomatic positions of the West have been, in essentially refusing to budge off of the just patently unreasonable and unnecessary (and in my view illegal) demand that Iran give up entirely its enrichment program. Again, I knew alot of this already, but the narrative really brings it out.
Now, I know this is a former government official speaking, and just like with any other current or former government official of any state, one must be mindful of the likelihood of selective fact presentation and spin. But even with that caveat, I really encourage people to read the article in its entirety. Just for a taster, here are a few quotes that stood out to me in their significance.
I recently saw this report about the Japanese Diet having amended its 57 year old national atomic energy act – Japan’s fundamental legislative framework governing its nuclear energy sector – to include “national security” as an ‘aim’ of the law:
Recent modifications to Japan’s national atomic energy act include the insertion of “national security” as an aim of the law, causing consternation in some quarters that the language could be used as a legal basis for the nation to create a nuclear weapons program in the future, the Korea Herald reported on Thursday.
“The safe use of atomic power is aimed at contributing to the protection of the people’s lives, health and property, environmental conservation and national security,” reads the new amendment to the Atomic Energy Basic Act.
The new national security clause was included as an appendix to a bill for the establishment of a new nuclear regulatory body in late June, and appears to effectively amend Article 2 of the 1955 Atomic Energy Basic Act, which originally read:
The research, development and utilization of nuclear energy shall be limited to peaceful purposes, shall aim at ensuring safety, and shall be performed independently under democratic administration, and the results obtained shall be made public so as to actively contribute to international cooperation.
This new amendment apparently went unnoticed for some time by the media, but since it was picked up it has caused a lot of controversy both inside Japan and within the region. Many in Japan consider the new amendment to be in disharmony with the “three non-nuclear principles” that have guided Japanese law and policy on nuclear energy for decades. The three principles (Hikaku San Gensoku) were first announced by Prime Minister Eisaku Sato in an address to the Diet on December 11, 1967, and later adopted by the Diet (though never actually made into law) in a 1971 resolution. Every Japanese Prime Minister since has publicly reaffirmed them. The principles state that: Japan shall neither possess nor manufacture nuclear weapons, nor shall it permit their introduction into Japanese territory.
Under some interpretations of the amended language – and I have to say that at least to me as a non-Japanese-law-expert, these interpretations seem pretty persuasive – the insertion of “national security” as an aim of Japan’s development and utilization of nuclear energy could pave the way, at least under Japanese domestic law, for the future development of a Japanese nuclear weapons program. That may well not have been the intent of the amendment – and numerous parliamentarians and government officials have been stressing that it was not – but it does seem to me that at the very least the newly crafted provision of this centerpiece legislation could colorably be used as a legal basis on which to ground the development of nuclear weapons in the future, by a government that wished to pursue such a program. Again, I’m not a Japanese law expert at all, so others that are may have a better sense of this potentiality (I’ll try to get Professor Masahiko Asada, a good friend and a great arms control law scholar at Kyoto University, to comment). In any event, the amended language has caused considerable alarm in Japan and has prompted calls for the amendment to be repealed in the next Diet session.
It is tempting for commentators on the UN Arms Trade Treaty negotiations to lose themselves in the diplomatic machinations of the various camps in New York this month or perhaps the more legal analysis of comparing the 2011 and 2012 draft papers of the chair to gauge “progress” or “direction.” Some commentators (including this one) certainly will be troubled by Article 6(A)(3) of the draft Arms Trade Treaty contained in the 2012 draft paper. This provision essentially allows national authorities to authorize the export of conventional arms and related items even where a substantial risk exists of serious violation of international human rights law, international humanitarian law or international criminal law, including genocide, crimes against humanity and war crimes, so long as the State Party takes “appropriate precautionary and preventive measures to mitigate such risk . . . .” One could argue that an equally troubling aspect is the absence of any reference to the dangers of the private manufacture of arms. This stands in stark contrast to the last global arms-trade-related treaty outside the organized crime context to actually enter into force – the Covenant of the League of Nations.
Paragraph 4 of Article 8 of the Covenant provides the following in relation to the private manufacture of arms:
The Members of the League agree that the manufacture by private enterprise of munitions and implements of war is open to grave objections. The Council shall advise how the evil effects attendant upon such manufacture can be prevented, due regard being had to the necessities of those Members of the League which are not able to manufacture the munitions and implements of war necessary for their safety.
Does this provision have any legal weight for states today to the point that they must prohibit the private manufacture of arms? Certainly the non-existent Council no longer can advise on how to prevent these “evil effects” or otherwise create obligations for states. Moreover, the language of the first sentence of Article 8(4) falls short of creating an obligation on states inasmuch as it merely recognizes that the private manufacture of arms is “open to grave objections.” Therefore, it is difficult to conclude here, as the ICJ concluded in its 1950 International Status of South-West Africa advisory opinion with regard to the League’s mandate system, that there is an arms-trade-related obligation that does not “depend on the existence of the League of Nations” and thus continues on after the League’s conclusion (1950 I.C.J. Rep. 128, 132-33 (July 11)).
This does not necessarily mean, however, that Article 8(4) cannot retain any normative weight for states. In particular, the second sentence’s categorical reference to the effects from the private manufacture of arms as “evil” stands out. The drafters of the Covenant did not spell out exactly what those evil effects were, and the available travaux préparatoires seems far more focused on the other provisions of Article 8 to give any meaningful guidance in interpreting Article 8(4) in particular. However, it is not difficult to imagine the drafters had in mind a desire to avoid private manufacturers pushing states into an international arms race and war merely for the sake of making a profit. Regardless of the exact meaning the drafters had in mind, has the situation changed so drastically since the drafting of the Covenant that this sentiment in Article 8(4) can be completely ignored? For example, should the control of private brokers be more of a priority than control of private manufacturers, based on a shift in their relative influence over the contemporary trade in arms? Alternatively, is there so much for the negotiators to consider right now that their overlooking of the private manufacture of arms is excusable? Or is it that governments (or rather key governments) now are so beholden to these private manufacturers that they dare not single them out? If the latter, what options exist for civil society to try to keep these special interests in check, especially if the dangers are as serious as the Covenant’s drafters framed them?
I am thrilled to be launching a new blog, www.armscontrollaw.com As the name suggests, this blog will be devoted to discussion and analysis of arms control law subjects. I wanted to start this blog because all of the current blogs in the arms control area focus on either technical or politics/policy views of arms control. There has been no blog that provides a serious forum for rigorous discussion of legal issues relative to arms control, by arms control legal experts – until now!
The team of core bloggers at www.armscontrollaw.com is:
Professor Dan Joyner, University of Alabama School of Law
Dr. Marco Roscini, University of Westminster Faculty of Law
Mr. Pierre-Emmanuel Dupont, Rochelois, Besins & Associe
Dr. Zeray Yihdego, Oxford Brookes University Faculty of Law
Professor Eric Myjer, University of Utrecht Faculty of Law
Professor David Fidler, University of Indiana School of Law
Professor Barry Kellman, Depaul University College of Law
Professor Dieter Fleck, Formerly of the German Ministry of Defense
Professor James Fry, University of Hong Kong Faculty of Law
We will also be joined from time to time by guest bloggers.
We are currently aiming for a public announcement on July 16, 2012. At that time we’ll advertise it as widely as possible. So keep watching this space and other arms control and international law online spaces for the announcement!